Digital Assets

10/10/2017

Despite the fact that virtual or digital currencies have grown very popular with billions of dollars owned worldwide, a problem has arisen because most people have little or no knowledge of the currencies or how they work.

This raises an interesting question. If people now going to have what amounts to a public funeral via social media, could they possibly plan for those funerals in the same way they now plan for their more traditional funerals?

In some ways they already can. For example, people can now designate a legacy contact for their Facebook accounts. Who knows, in the future people may designate a Twitter hashtag they would like used for expressions of grief.

The Internet has not just changed how we grieve over death. It has also changed how we should plan for our estates.

Detailing how our digital accounts are handled after we pass away is an increasingly vital part of estate planning.

04/15/2015

19-year-old daughter Becky loved sharing her life on Facebook. When she fell terminally ill with a brain tumor, and lost speech and movement, her mother Louise would log in with Becky to help her stay in touch with her friends. Becky died in 2010 but Louise continued to access her account to feel close to her daughter. But then Facebook locked or 'memorialised' Becky's account.

When 19-year-old Becky was diagnosed with a brain tumor, she could no longer maintain her Facebook page on her own. Instead, her mother Louise helped her and together the two of them used Becky's account to let people know how she was doing.

After Becky passed away, Louise continued to access the account to read what people had to say about Becky and how they spoke with her in private communication. Louise found it comforting and it reassured her that her daughter would not be forgotten.

Unfortunately, Facebook memorialized the account without notice. They made it so that Becky's account could not be accessed publicly and that no one could make changes to the account.

The issue is not just isolated to Facebook. Other social media companies do similar things after an account holder passes away. It highlights the need for options if you want your family to be able to access your social media after you pass away.

In the end, you really need to engage an experienced estate planning attorney who can help you navigate the applicable laws and specific policies of the various technology companies.

04/14/2015

A bill in the General Assembly would treat individuals' Facebook, Twitter, email and other online accounts the same as physical assets after death.

By default, the law does not treat digital assets the same way that it treats physical assets. After a person passes away, physical assets become part of the estate. Executors and loved ones are given access to the physical assets to dispose of them in accordance with an estate plan.

However, treatment of digital assets is determined by the terms of service of online companies.

This creates problems for executors who often need access to the digital assets to properly administer the estate as many technology companies make that access incredibly difficult to get.

Throughout the country state legislatures have debated this problem in an effort to reach a solution. The latest to do so is Illinois.

Its legislature is currently taking up a bill that would treat digital assets as physical assets, which would allow a court to appoint a trustee to access them. The bill is strongly opposed by technology companies and privacy groups who think the bill would be a violation of the deceased's privacy.

It will likely take years for any sort of consensus to develop throughout the country. In the meantime, it is important to talk to your estate planning attorney about what you can do to ensure that your digital assets are handled appropriately in your estate.

02/05/2015

If you die unexpectedly, should your "digital assets" like text messages, e-mail and photos die with you?

One cold night in December 2013, Jake Anderson left a party near the University of Minnesota campus and was inexplicably later found frozen to death in his car. The medical examiner ruled the death accidental, so there is no criminal investigation and the case was closed.

Anderson's parents, on the other hand, are not sure and would like to know more about their son's last night. They believe information might be found on his password-protected cell phone. However, even though the phone is in the parents' name, they are not allowed to access it without a search warrant.

This is a common problem for many families who want to view digital data of deceased relatives. They are unable to do so without approval of the courts, which can be difficult to obtain.

For their part, the Andersons are lobbying the Minnesota legislature to change the law, allowing account holders or a personal representative of the deceased, like an executor of a will or surviving beneficiary, to get access as long as the deceased doesn't prohibit access in their will. Some state legislatures have passed laws making access easier. However, others are concerned about honoring the privacy of the deceased.

Digital assets are becoming an increasingly important part of our lives. Make a plan now to share those assets appropriately with those who may need it. For guidance and to make your plans legally binding, consult with an estate planning attorney.

10/22/2014

In a recent blog post, Yahoo’s Senior Legal Director for Public Policy criticized the UFADAA for the “faulty presumption that the decedent would have wanted the trustee to have access to his or her communications” and for “set[ting] the privacy default at zero.”

When their loved ones have passed away, many people experience great difficulty gaining access to the deceased's digital accounts, such as email accounts, social network accounts, and online bank accounts. In some cases, as soon as the online company hosting the account is officially informed that an account holder has passed away the account is closed and all of the content is subject to deletion. This has caused frustration and angst for many grieving families. In response, some states have passed laws providing access to digital accounts if certain conditions are met.

The tech companies charge that the proposal assumes the deceased wanted to allow access. That is true. However, unless stated otherwise in a legal document, the proposal does allow access to digital accounts. Companies who do not necessarily have the best record on protecting customers' privacy are now objecting to this proposal on privacy grounds. The battle between the tech giants and the Uniform Law Commission is one that will be played out from state to state in the next few years.

05/10/2013

From social media to online bills, it is essential to plan what will happen to your virtual life once you are gone.

Have you noticed more and more articles popping up about your “digital assets”? When the background chatter in the media finally catches your attention about something, that is usually a sign to start paying attention.

Proper planning means planning for all the lives you lead. It used to be that you had your life in the flesh and then you had your life in paper, that is, your accounts and records and even contracts. Nowadays, you live much of your life on the internet.

Your online life requires that information about your digital assets and accounts (especially passwords) must be included as part of your comprehensive estate plan. In turn, this information must be kept up-to-date and made available to your executors (also known as personal representatives), financial agents and trustees.

Likely, the digital age will only get more complex. Kiplinger recently addressed this subject of digital assets in a postmortem planning context in an article titled “Protect Digital Assets After Your Death.”

Everything from simple email accounts to Twitter, Facebook, Pinterest and then all the way to investment and banking sites, each of these contains information that can be of immeasurable value economically or sentimentally.

For example, what about your iTunes music collection or Kindle book collection? On the other hand, if your digital information is not secured postmortem, then it could become a liability in terms of identity theft.

Bottom line: without a comprehensive list of accounts and passwords, executors, trustees and even heirs might have a hard time accessing and/or closing your accounts.

Do not expect any help at common law either. These are largely uncharted legal waters. In fact, internet companies themselves are only just starting to address this issue.

For more information about protecting your digital assets after your death for residents in Independence, MO, please visit my web site http://www.stilleylaw.com/.